Give me liberty, or give me health care, part 2

By
Charles Lane

In the great constitutional debate over health reform, supporters of the law argue that the individual mandate to buy insurance is not nearly as novel as opponents claim. Indeed, they say, there is ample precedent for it; throughout American history, Congress has required citizens to do various things they might otherwise not want to do, for the sake of constitutionally authorized national objectives.

Examples, past and present, include: filing tax returns, federal jury service, various iterations of the military draft, and the 1792 Militia Act. Signed by none other than President George Washington, that law not only required all white male citizens aged 18 to 45 to report for militia duty, but also spelled out precisely what equipment they had to pay for out of their own pockets, down to the bullet.

Oh, and here's another one: the Fugitive Slave Law of 1850 "commanded" "all good citizens ... to aid and assist" federal marshals in hunting down escaped slaves, threatening those who refused with criminal prosecution and civil lawsuits. Morally repugnant and widely resisted though it was, the Fugitive Slave Law was perfectly constitutional in its day. In 1859, the Supreme Court ruled that courts in free states could not negate their citizens' duty to comply with it.

There may well have been other federal individual mandates in history. I would love to hear from readers with more examples. But looking at the list so far, it's interesting to note what they do, and do not, have in common with one another -- and with today's health-care statute.

The previous individual mandates differ in their means of enforcement and other details. Some (e.g., the Fugitive Slave Law) sought compliance by threatening punishment; others employed a mix of carrots and sticks. The 1792 Militia Act does, indeed, resemble today's health-care individual mandate in that it calls for citizens to purchase particular items -- though, unlike the health-care mandate, it does not appear to limit the choice of vendors from whom one might buy.

But the most striking common element of these mandates is that they were enacted pursuant to powers of the Congress that are clearly expressed in the constitutional text.
The 1792 Militia Act, for example, put into practice Article 1, Section 8, clauses 15 and 16, which empower Congress "to provide for calling forth the militia" and "to provide for organizing, arming and disciplining the militia." Tax reporting is contemplated in the 16th Amendment, which says "Congress shall have the power to lay and collect taxes on incomes." Mandatory jury service flows naturally from the Fifth Amendment, which requires grand jury indictments, and from the Sixth Amendment, which guarantees the right to trial by "an impartial jury." Military conscription is authorized by Article 1, Section 8, clause 12, which empowers Congress "to raise . . . armies." And -- alas -- the Fugitive Slave Law clearly followed from Article IV, Section 2, clause 3, which required that slaves escaping to the North "shall be delivered up" to those claiming to own them.

By contrast, the health-care individual mandate carries out a power that Congress has by implication. Nowhere does the Constitution mention health care or health insurance. Rather, Article 1, Section 8, clause 3 authorizes Congress to regulate "commerce . . . among the several states," a phrase that has been interpreted over the years to encompass the market for medical care and health insurance.

The Constitution also gives Congress authority to "make all laws which shall be necessary and proper" to carry out its powers. And supporters of the health-care mandate are absolutely right to note that this "necessary and proper clause" applies equally to Congress' implied and express powers.

That's been the law since at least 1819, when Chief Justice John Marshall memorably ruled on behalf of a unanimous Supreme Court in McCullough v. Maryland: "If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect."

In McCullough, the Marshall Court affirmed Congress's power to incorporate a national bank, even though many states objected and even though the word "bank" doesn't appear anywhere in the Constitution. It was, the court held, a necessary and proper means of carrying out enumerated powers of the federal government -- to collect taxes, borrow money and finance a military force -- from which the power to create a bank could be plausibly inferred.

What's more, the list of past individual mandates proves that Congress can make pretty onerous demands on the citizenry. It can draft them to risk their lives in war; it can oblige them to spend tedious hours sitting as jurors; and, as the 1792 Militia Act shows, it can even command them to buy weapons.

Serving in the militia, paying income taxes, sitting on juries, submitting to the draft -- all are basic responsibilities of national citizenship clearly spelled out in the Constitution. (Blessedly, hunting down escaped slaves is no longer one of these.) And Congress has the power to make sure everyone does his duty. No free riding allowed.

Clearly, then, Congress can set up institutions and regulatory schemes -- from a national bank to the Environmental Protection Agency -- in pursuit of its implied powers. And it can impose individual mandates, including rather heavy ones, in pursuit of express powers. What's new about the health care case, however, is the attempt to impose an individual mandate in pursuit of an implied power.

In the absence of express textual authorization, Congress declares that buying health insurance -- actually, a particular insurance product from a limited number of vendors -- is a duty of citizenship as basic as paying taxes, serving in the armed forces, or sitting on a jury.

This may well be perfectly constitutional -- a straightforward application of McCullough v. Maryland, as the law's supporters maintain. It may indeed be true that Congress's power to regulate interstate commerce implies the power to regulate health insurance markets, which, in combination with the necessary and proper clause, implies the power to prevent free-riding by members of the risk pool, which implies the power to impose an individual mandate, which implies the power to require everyone to buy a certain health insurance policy from a certain company, which implies the power to exact a cash penalty from those who don't cooperate.

The other side of the question, however, is that there may be a reason Congress has so rarely imposed individual mandates pursuant to its implied powers. And that reason might be: The less explicit Congress's constitutional authority, the less transparent the connection between that authority and the demands Congress would place on the citizenry.

It's worth noting that all federal individual mandates have been more or less unpopular. Naturally reluctant to follow orders they find disagreeable or inconvenient, or an infringement on their freedom, some Americans have always resisted the draft, taxes or jury service. Even the 1792 Militia Act faced chronic compliance issues. (According to the latest survey by the Kaiser Family Foundation, by the way, the individual mandate is the least popular element of health care reform; 76 percent of adults oppose it.) Yet to the extent that the federal government can cite clear constitutional authority, resistance loses legitimacy.

Congress obviously has wide power to provide national solutions to national problems; McCullough, and many other cases since, settled that. McCullough also rejected "strict constructionism' as a mode of constitutional interpretation.

Still, the Constitution was ordained not only "to promote the general welfare," but also "to secure the blessings of liberty." There can be trade-offs between those objectives: Accordingly, there must be some limit to Congress's implied power to command its citizenry -- even in the name of the common good. Otherwise, there really will be no end to the power it can assert, and liberty will be at risk.

I could be wrong, but I think John Marshall would have agreed with that. Soon enough, we'll find out where today's Supreme Court wants to draw the line.

Thank you for your reference to the Fugitive Slave Law. I thought the ObamaCare was the worse bill ever passed by a US Congress. I now realize that's not true.

Also thank you for pointing out how we have moved from the Constitutional definition of "freedom" of 1859 to the definition of freedom today. As such this Court should find the mandate unconstitutional.

It should be noted that the Constitution expects the Federal government to provide for its defense. As such implementing a draft in times of war versus forcing people to buy something are hardly comparable.

"By contrast, the health-care individual mandate carries out a power that Congress has by implication."

Hooo - Boy !!! Let's not forget "provide for the general welfare" implied powers. Those are unlimited, where anything deemed "general welfare" is enforceable by law.

Private property is counter to general welfare so let's do away with it. You have too much wealth, they have the implied power to take it. What you eat, drink, drive, wear, or live in denies others, so they have the power to "regulate" those things.

Instead of the little kid whispering "I see dead people", liberals like Lane are saying "I see implied powers in the Constitution". Pure fiction.

We don't have health care for all because we are a country of hate, and these arguments against the individual mandate are just that - hate, being spewed by those who love the existing system...

Which is based in hate. It kills tens of thousands a year (who can't afford health insurance) and bankrupts millions. In any other prosperous country, haters would not have the moral legitimacy to kill and kill and kill tens of thousands of their fellow citizens through the abuse of the health care 'system' . They would be jeered out of the political debate, because the toll in orphans and family destruction and overall death would be understood to be unconscionable.

Why do these arguments have moral legitimacy? I think it is because those who promulgate them have not been vilified as the scoundrels they are.

Blood runs through our streets - and these scoundrels are at fault. This is only the truth. I've had such death and destruction in my family and workplace. I am sick of the lies, and I am sick of the sullen, selfish, disgusting resentment that defines the American 'character'

This is the most specious piece of twaddle I've ever read. By Mr. Lane's logic Congress can mandate anything it wants that is not specifically prohibited by the Constitution. This abolishes the clearly stated intent of the founders to create a limited government with the great majority of powers left to individuals and states. In fact it is advocacy of a silent coup by those who favor a smothering, Big Brother form of government.

Mr. Lane is a modern-day Sophist, and his argument deserves the same scorn and derision aimed at those from ancient Greece.

Congress can mandate anything it wants that is not specifically prohibited by the Constitution.

Posted by: dan1138

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Actually, this is 100% correct. What makes you think that the duly-elected representatives of the people CANNOT legislate anything that is not specifically prohibited by the Constitution? The Bill of Rights is a list of things the Government CANNOT do. The rest is, as you pointed out, the natural rights of human beings. They are then allowed to elect people to legislate their will so long as it is not prohibited by the Constitution.

There is something very funny about this style of argument, although certainly not unique among conservatives. The view is that while every aspect of the bill is similar to something constitutional that has come before it, it has never been put forward in this combination, and the combination somehow makes it unconstitutional.

It is hard to imagine the principle of constitutional interpretation that justifies such a thing. Obviously it is not strict interpretation which does not get that putting constitutional things together can become unconstitutional if there are too many of them.

This kind of argument seems more a parody of conservative argument than a serious argument.

If the rule is that we can draw the line at anything which has not been done in this combination, then the slippery slope argument disappears anyway, and the fact that this particular law is not very invasive compared with earlier laws would seem to be decisive.

I have to say, there are few things I enjoy as much in life as reading the comments of wacky right-wing nutjobs howling about "give me liberty or give me death" and railing against "Big Brother". These are the "black helicopter" people from the Clinton years, the gun wavers, the armchair patriots who will fight to the death for their "liberty" as long as it doesn't interrupt their TV schedule. In the weird universe they inhabit being told that it is their responsibility to get health insurance (or pay a fine) makes us all Bolsheviks. Too funny. Too sad. And what you never hear them mention is the fact that we have failed as a nation to deal with the health care issue, unlike so many other advanced countries in the world. Until now.

OK, dump the affordable care act. Everything will be just fine. Who cares if health insurance costs soar? Who cares if millions of Americans have no health care
coverage? Let them go to emergency rooms
that we will all pay for as they cannot.
Let many many middle class breadwinners go bankrupt when they face huge healthcare bills they can't pay for.
Everything is fine - we'll just continue everything as is; until the GOP eliminates Medicare/Medicaid.

Give me liberty or Secret Funds for Obamacare Defense Initiative run by a convicted Democratic advisor.

"A top Democratic adviser convicted in a major political scandal as a legislative aide will help lead a new initiative to defend President Obama’s highly unpopular healthcare overhaul."

"In 2005 she was convicted for her role in the largest political scandal in Wisconsin history. As chief of staff to a state senator from Milwaukee, Bjork altered records and illegally solicited campaign funds in the capitol. The senator, Brian Burke, eventually got convicted as part of a widespread investigation into the illegal use of taxpayer resources for political campaigning."

"After working on Obama’s presidential campaign Wisconsin’s former governor, Democrat Jim Doyle, awarded Bjork with a six-figure job to lead the state’s federal lobbying effort. The move ignited fury among government watchdog groups that claimed corruption was still prevalent in state politics."

You right wingers make the unsubstantiated claim that the AC Act is "wildly unpopular". Polls show otherwise. The antis have been fed so much propaganda that they don't have a clear idea of what the bill contains. Just as you've convinced
a majority of GOPers that Obama was not born in the US - thus is inelibible to be President - thus is illegitimate. You guys do propaganda really well.

Many Americans might not be as defensive about the manadated insurance buy if it applied to EVERYONE who used our health care system.

Even if every American citizen bought a health insurance policy, there will still be 20M (very conservative estimate) illegal aliens and their illegitimate anchor babies stealing from the insured (keeping health care costs up) by using and abusing our hospitals and ERs as their personal FREE primary health care facility.

Congress REFUSES to turn off the Welcome lights at the ERs, yet tells us we need to to "sacrifice" so the illegals can have free health care.

Just one example of the use and abuse of our health care system by illegal aliens - that will NOT stop if Obamacare moves forward.

According to PEW studies, 380,000 babies are born in this country to illegal aliens EACH YEAR. The average cost of a normal birth without complications is $3,500. And that is just the start of medical costs that will be borne by the mandated insured.

Now, do the math and then tell us how mandating insurance for citizens, while giving a free pass to 20 million illegal aliens and their illegitimate anchor babies is going to lower health care costs?

The mandate will never fly unless EVERYONE pays for their health care when received.

Constitutionality means nothing if the people are opposed to the law and elect a Congress to repeal Obamacare.

Half of Congress has already been elected with that specific goal in mind. The only reason the Senate has not fallen into line with the "will of the people" is because most of the Senators who sold out Americans were not up for election in 2010 - we'll get them in 2012 and Obamacare at the same time.

Obamacare is NOT Social Security or Medicare. It is not a single payer program ..........

Using the commerce clause as you outlined, why couldn't Congress pass a law that requires everyone to a private health club, after all this will help lower health care costs. At some point individual liberty must win . . there is a better way to provide coverage for all.

Give Me Liberty or a Corrupt Justice Department and a partisan idealogue news media that refuses to do their job and live up to a notion of jornalistic integrity or their ethical responsibily to do investigative reporting regardless as to where it leads them.

Okay but first health care cost have to be regulated and health insurance costs have to be regulated.
We cannot mandate that people purchase health insurance when their options are very limited; take what the employer offers or pay the whole cost of the insurance at around $1,000 a month. Someone who is not employed, employed without benefits (that's a big one these days!!), or unemployed cannot afford $1000 a month! People who are fully employed with great jobs can't afford $1000 a month for insurance, that by the way covers nothing.
Before we are FORCED to buy health insurance let's regulate the premiums people!
This bill is so backwards all it can sees is it's own rear.
It is only logical to regulate before you mandate. But it is a fool who looks for logic in the human mind and I am a fool. I keep hoping though.

Here's the deal, Mr. Lane. Most Americans want healthcare reform. We don't accept the version that was passed in 2010. We want the Court to see it that way as well. When that is accomplished, we will implement solutions that will work without undermining individual liberty.

In 1798, President John Adams signed into law the Act for the Relief of Sick and Disabled Seamen. This act required the master of U.S. merchant vessel arriving from a foreign port to deduct from each seamen's wages 20 cents per month. The money was collected and sent to the U.S. Treasury. The President was authorized to approve expenditures to "provide for the temporary relief and maintenance of sick or disabled seamen...", build hospitals and appoint administrators of these hospitals.

Please note that this act, when first implemented, was applied to merchant seamen, not seamen of the U.S. Navy. This was an act that required private citizens to pay into a fund to provide for their health care. It was not voluntary on the part of the seamen nor on the part of the merchant vessel.

The act was amended in later years to provide that U.S. Navy seamen also participate and, in 1803, was amended to include every person who worked on a boat, raft, or flat belonging to a citizen of the U.S. "which shall go down the Mississippi, with intention to proceed to New Orleans..."

One other interesting point about this early American socialism, is that the original law was signed during John Adams administration and amended during Thomas Jefferson's administration. I have read comments that both Presidents thought this was a very good idea, but I have no original sources to quote.

It's amazing how arguments change with the wind. In 2007 I had an interesting conversation with a conservative friend of mine about healthcare. He was beside himself with anger because he felt that his insurance costs had skyrocketed in order to cover folks that were showing up at emergency rooms without insurance. He felt unfairly burdened by the irresponsibility of others. It's now 2011, and guess what, now he's mad that his 2007 problem has been solved. Welcome to the wacky world of the "know-nothings". Most of the Founding Fathers were products on the enlightenment, the progressives of there day, – to appropriate them for the Tea Party movement is just insane.

Once again, I scream at the top of my lungs, I don’t care if you are liberal or conservative, Republican or Democrat; just tell me how to fix this health care mess. I am compassionate enough to read the arguments about the uninsured, and how getting them coverage will be cheaper for us all in the long run, but to tell you the truth, I don’t care about the long run. My insurance premiums that I pay for my employees’ runs about $8000 to $9000 a year per employee. It has risen over 10% a year for the last 10 years. I talk to other owners and managers at other companies and they are experiencing the same thing. We cannot continue to pay these prices and stay competitive. Tell me how we fix this, instead of just calling each other names and trying to place blame. The answer must help me face tomorrow, not make me feel good about yesterday.

I ask all of you with company paid health insurance, even if you pay towards it, to ask your HR Department this week what the cost, per employee, is for the company to provide health insurance. Based on a normal work year of about 1960 hours (2080 hours less holidays, vacation, etc), I will be shocked if it is less than $5 an hour. That means if an employee makes $40,000 a year (around $20 an hour) that health care coverage is an additional 20% of what that person makes. It has got to stop before more and more employers stop offering health coverage, and we become a nation of those who can afford to be healthy, and the rest of us who will be living under the 14th Street Bridge after our first hospital stay.

Why do we fuss around with all this palaver. Everyone know what is needed to bring health care under reasonable control. Start taxing TAX EXCLUSION INCOME. Mom & Pop enterprises are not receiving such ... then why ?

Thank you for this Mr Lane. This is the kind of thing we need more of today. Even if some people believe it incomplete or biased (as happens with anything and everything) it is still wonderfully informative and thought-provoking.

Will this "attempt to impose an individual mandate in pursuit of an implied power" set a precedent (or increase it as the case may be) that would make it easier for a government with a more "conservative" agenda, however you understand the term, to carry out this agenda at the expense of the individual freedoms that people on the opposite side of the ideological spectrum hold invaluable?

That is, if conservatives feel we as liberals are restricting THEIR freedoms, how might they retaliate using this very same argument to restrict OURS.

I know, I know. It isn't US v THEM. Our freedoms are their freedoms, their's are our's. However, a key difference in the political debate of this country is WHICH freedoms you hold above others? It is a hard fact going back to Locke and earlier that society cannot exist without the restriction of some of man's natural freedoms, and the most powerful tool for shaping that society to one's own preference is the selected restriction and expansion of those natural freedoms by the dictate of the governing body.

Conservatives, help me out here. If this thing does go through, how would you use this tool to restrict the liberal agenda or expand the conservative one when you inevitably have a government more in line with your ideology? Flag-burning? Pot? Funding for abstinence-only education? Think about it. We need to be careful with this stuff. Very, VERY careful.

Because remember Obama saying that "it is not a tax" ... early in the argument the only way Obama could sell this to Congress was to show it was not a tax and not a government takeover. It is simply mandating individuals to buy a product, hence, unconstitutional.

There is one other little thing about the Constitution that you left out. Its called the 10th amendment. It goes something like this... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I would argue that requiring people to purchase a product of insurance provided by the Government is NOT provided for in the Constitution and therefor reserved to be regulated by the States.

I think this is why each side views the other as (insert ideological epithet here). Just because someone in Greenwich village doesn't care about gun rights doesn't mean someone in Tampa doesn't. Someone in Salt Lake City who doesn't care about alcohol laws means someone in Atlanta does. And a white christian male who never has to worry about dying from a horrible botched abortion in a dirty back-alley "clinic" means that a black agnostic female never worries about their child being heckled for expressing personal religious beliefs in a public school.
Is it really so onerous to ask people to get health insurance? To quote futurama "I don't know, but my gut says maybe."

The main thing wrong with the health care law is the amount of input that the insurance industry had on it. I currently pay almost twice as much for health insurance as I pay in taxes. So I wouldn't mind if my taxes doubled as long as I didn't have to pay the salaries with the very people with whom I have to fight every time I actually use my insurance.

As a Swedish law student this debate is very intriguing to me. First of all thank yourself for being a people primarly created out of a Constitution and having Constitutional legal thinking as the foundation of all legal reasoning in your country. Constitutional legal reasoning is still in ints infancy in Sweden.

Moreover, I should state that I strongly favor the health-care law as such. Whether it is constitutional is however another issue.

One must be painstakingly honest and objective in all legal reasoning. When interpreting the constitution and other legal texts, the motives driving legislators must be identified as much as possible before analyzing the meaning of a legal text, in this case the US Constitution.

Also in this case, honesty and objective thinking at least makes me draw the conclusion that the founding fathers never imagined a welfare state when it wrote the constitution.

The founding fathers were from a philosophical viewpoint products of the liberal enlightment movement sweeping Europe during the second half of the 18th century.

The Enlightenment advocated freedom of thought, expression and learning before anything, because these would make human beings use the human intellect and logical reasoning to produce the best societies. Moreover, they would produce the societies by their own choice.

The Enlightenment sought to protect two often conflicting human interest. The freedom of the pepole against opressors and the freedom of the individual from opression.

As probably the first real-life actors of liveral Enlightment philosophy, the founding fathers sought to create a nation where people would govern themselves mainly by majority rule, but also with checks and balances that would protect individuals from opressive government.

When thinking of government, the founding fathers sought to for example do away with hereditary privilegies such as nobility.

It sought to gove everybody the right to work or to eat. What they did not do, was to legislate the duty to work or to eat, nor for the government to provide work or food.

This is why I say the modern welfare state was not in the head of the founding fathers. It was almost as inconceivable of an idea as having legislation regarding the use of cellular phones or production of space shuttles.

The ideas of the welfare started to be formed during the mid 19th century and were implemented in politics during the first decades before and after World War II.

Thus, forcing everybody to buy health insurance is an issue related to political ideas that largely supplements the ideas of the US constitution, and perhaps even so some degrees conflicting with it.

The obvious way to avoid this conflict from the beginning would have been to include the public option of health insurance through taxes. This is how we do it in Sweden.

There are many ways available to control the cost of health insurance. Tort reform is just one of them.. Inexplicably obama is more interested in passing along these runaway costs in health care to business and the wealthy rather than making it so each one of us can afford to pay for our own health care. Apparently if I am wealthy I have an obligation to pay for health care for the elderly and the poor and government employees yet they do not have any obligation to lead healthier lifestyles to reduce their burden upon me. So if some poor slob gets diabetes from sitting on his ass eating twinkies the rest of us that make a decent living are just supposed to carry the burden associated with his lifestyle choices. Outrageous.

The_Rat at 5:07 pm: Once again, I scream at the top of my lungs, I don’t care if you are liberal or conservative, Republican or Democrat; just tell me how to fix this health care mess."

Well said. I think the answer is universal one-payor health care under the government. Insurers have had the health care market and have shown they do not know how to deliver health care. No big surprise - their product is not health care, their product is health insurance. They don't make their money on reducing health care costs - they make their money on managing the margin between what they receive in premiums and what they pay in benefits. So far, they have done a great job managing their business.

I worked for a lovely mid-sized manufacturer who has now moved manufacturing to Mexico, some computer support to India, some accounting to another Asian country. While health care wasn't the only problem, it was a BIG problem. Double digit price increases every year even after we raised deductibles, co-pays, out-of-pocket maximums, and employees share of premiums as much as we could. Problem was that the majority of employees made $8-$9 per hour - so raising all the innards and premiums of the insurance every year just disenfranchised them from the benefit itself. We did all we could to keep it something the employees could both value and benefit from - but, ultimately, we lost.

Lets stop messing around with who pays how much to insurance companies. That is a game that has been played for decades and obviously doesn't work. We need to try something new.

Please hang on. We need employers who care to try to give their employees health insurance benefits until we can get a better system.

NOTHING the Republicans have proposed will make a bit of difference. Unformtunately, what the cowardly Dems delivered is also not all it should be - but it is better than what we had before and could be a beginning, if we have the courage to keep going with real reform. What won't work is going back to what we had before. Only a crazy person things repeating the same actions will produce a different reaction.

"The mandate is effectively a tax -- it functions like a tax, and it's even tied to a tax penalty for those who don't pay it."

Smart argument. Maybe the health-care legislation should have used the word "tax" for those not purchasing health care, instead of the word "penalty fee", and there would be no constitutional problem with the health care act.

Great comments by all. For years I failed to realize that Constitutional jurisprudence is so black and white.

It's not like the Federal government could order the internment of a race of people (or people who happened to look like a race of people) to protect a nation's general welfare in a time of war... Right?

You couldn't even get it right in your first sentence. In the great constitutional debate. Wrong, it's unconstitutional and there's nothing patriotic about health care. It's a direct assault on our rights and choices because our right to choose was taken away from us. Obama didn't want to help those who were uninsured because he wanted to use the uninsured to control all Americans. Who cares how Obama puts it. It's government take over to increase taxes just to fund his social justice agenda.

For me, it's as simple as this. Under the current system, the uninsured and under-insured will get help from the taxpayers if catastrophy strikes them. This is a very expensive way to pay for people who do not have insurance. Having everyone participate in the insurance pool brings all the costs down. There are only two ways to do this. A single payer government system (labeled "socialist" and rejected by many), or a private insurance system that requires all citizens to participate.
If we don't elect one of these options, we are stuck with what we have now, paying for the uninsureds' emergency room visits through the tax system.

houstonian: Wow. That was epic. What an argument. It belongs side by side with mminka's beautiful and reasoned statement that conservatives are almost literally dumping the blood of their victims into the streets while little Danny Torrance stands there shouting redrum.

"There's nothing patriotic about health care." Please tell me where love of country enters into the treatment of illness. I take it you mean THIS kind of health care policy is unpatriotic because nothing says I love this country like not caring about whether your fellow countrymen die of preventable diseases. It's American independence baby! Very in keeping with Christian values as well.

Speaking of Christian values, dying, the liberal social agenda, and the crux of your argument "It's a direct assault on our rights and choices because our right to choose was taken away from us" let me ask you how you feel about choices taken away in other terms...

Naaaw. We don't need to go there. That just complicates things. Like Goombay said, it's black and white, right?

Can't the Post find any right-wing columnists who don't need to lie and distort in order to make their arguments? I seriously thought that the right was not so intellectually bankrupt.

Lane is unwilling to discuss the strongest argument for Congress's authority over the individual mandate: that it is enforced by the power to tax for the general welfare. His column is an embarrassment; he poses as some kind of legal scholar while avoiding his opponent's real case. What a farce!

The constitutional argument would be rendered moot if a healthcare tax was imposed with full deduction from the federal income tax for money spent on a private policy. The tax (not penalty) would in essence set the rate for a minimum insurance policy and it would be by definition progressive as long as the federal income tax remains in its current state. Simple and well within expressed authority of the 16th amendment to the constitution. Unfortunately the deceitful democratic congress wanted political cover and made a distinction of a penalty rather than a tax. A penalty for not doing something "implies" the authority to mandate something and therein lies the rub - what exactly defines the limit of federal authority in the absence of an amendment to the constitution allowing it? This question before the court is the most important decision with regards to liberty that we will see in our lifetimes and it can only be hoped that some restraint is applied to the notion of implied power. The constitution was drafted to protect the citizenry from those in power and those issues not provided for by the constitution have the legal remedy of amending the document - that is the true "living" constitution. And before we get too excited about the ability of the federal government being able to provide health care in a fiscally sustainable model consider that Britain is dismantling its public health service due to poor quality and excessive cost. I say call it a tax, man up and take credit for it if it is such a good idea and start working on real mechanisms for cost efficiency like malpractice reform and physician/hospital profiling - the real problem isn't going to be mandating that people pay for an overpriced service because that will just increase costs which are the root of the problem anyway.

Apparently Mr. Lane did not read the 78 pages of Judge Vinson's ruling, or he somehow thinks he knows more about the law then Vinson does.

Judge Vinson cites case precedents throughout his ruling and found that Congress had overstepped its bounds by trying to force a mandate. There has never been a case where inactivity comes under the Commerce Clause and choosing not to buy insurance is just that-inactivity. The Supreme Court will no doubt agree with Vinson's well thought out and explained determination.

The issue is not government mandates. The issue is that this is a governmentally enforced CORPORATE MANDATE. A mandate to force citizens to enrich a corporation, a mandate to enter into a lopsided and unfair contract with an unsavory partner. A mandate that will be executed by the government to force citizens to pay a fee - not a tax - to an outside, largely unregulated, undemocratic, and despised private entity. To pay a fee to a corporation - which will have control over life and death decisions and which exists soley to make a profit.

The government can of course mandate all sorts of things and taxes - but it CANNOT mandate fees and payments to private companies and corporations and force citizens into contracts with private companies.

It's not hard to understand. Mandates for PUBLIC purposes are within the government's authority. Mandates for PRIVATE interests are not.

Forced mandates and subjugation to a private undemocratic and powerful private interest is beyond the scope of the government's authority and undermines individual freedoms.

The issue is not government mandates. The issue is that this is a governmentally enforced CORPORATE MANDATE. A mandate to force citizens to enrich a corporation, a mandate to enter into a lopsided and unfair contract with an unsavory partner. A mandate that will be executed by the government to force citizens to pay a fee - not a tax - to an outside, largely unregulated, undemocratic, and despised private entity. To pay a fee to a corporation - which will have control over life and death decisions and which exists soley to make a profit.

The government can of course mandate all sorts of things and taxes - but it CANNOT mandate fees and payments to private companies and corporations and force citizens into contracts with private companies.

It's not hard to understand. Mandates for PUBLIC purposes are within the government's authority. Mandates for PRIVATE interests are not.

Forced mandates and subjugation to a private undemocratic and powerful private interest is beyond the scope of the government's authority and undermines individual freedoms.

The biggest issue I see with it is not the mandate to buy Health insurance per se, its the precedent it would set. Once this kind of power is permitted it opens the door to a whole slew of other regulations in name of the greater good.

Those Americans who do not choose to purchase health insurance also do not choose to endure cancer without treating it. One way or another they'll be participating in the health care system. We shouldn't refuse to treat them, so make them pay for it ahead of time by purchasing insurance instead of having us foot the bill.

Congress also passed the Espionage Act of 1917 during World War I. It was controversial with the public, especially among political radicals opposed to war, conscription, and interference with civil liberties. The act had provisions for steep penalties, including a $10,000 fine and 20 years in prison.

Its purpose was to silence anti-war protesters and left-wing sympathizers. Eugene V. Debs was sentenced to ten years in prison for claiming in a speech that the Espionage Act itself was unconstitutional.

Congress then passed the Sedition Act of 1918. It extended prohibition on the expression of anti-war and unpatriotic sentiments. It imposed several penalties on those convicted of "disloyal, profane, scurrilous, or abusive language" against the government, its actions, or its symbols. There was anti-German hysteria all over America. Many Germans changed their names from Schmidt to Smith and Mueller to Miller, etc.

During the Red Scare - 1919 -1920, the attorney general, A. Mitchell Palmer, and his assistant, J. Edgar Hoover, set up a special task force to prosecute radicals under the Espionage and Sedition Acts. Nearly 2,000 people were tried and sent to prison. This was the forerunner of the FBI.

We now have the Patriot Act which spends billions every year to set up espionage and spy agencies to watch over all American citizens and to set up concentration camps known as FEMA centers, in case we have food riots in America.

I think another current example is the home mortgage deduction. It has the same inducement to purchase a mortgage that the health care mandate has; you pay more to the IRS if you do not purchase a qualified commercial product. The language is different (mandate vs deduction) but the practical impact is precisely the same.

Has the justice department made any of these arguments to the courts in the Obama Care Cases? All I have read about it there reliance on the Commerce Clause.Is's interesting in theory, but doesn't mean much until it is argued in front of a judge.

This bill is just another example of how those in power will use the need for something good, such as a SENSIBLE healthcare bill, and then turn it into a corrupt piece of legislation to insure that they keep their position of power.

How else do you explain the absolute refusal to address the incredible need for tort reform to reduce the cost of healthcare services? Lack of such tort reform will continue the practice of unnecessary lab tests and procedures, which adds 135 BILLION DOLLARS in costs EVERY YEAR! Medical care professionals are forced to practice this defensive medicine due to the fear of frivolous malpractice lawsuits which line the pockets of trial lawyers. This defensive medicine increases the cost of healthcare by more that a TRILLION DOLLARS every 8 years! But when a special interest group such as trial lawyers contribute more than 40 million dollars (as they did in 2008) into the election coffers of the party in power(Democrats), which is more than 4 times the amount they contributed to the other party(Republicans), what else can you expect?

Also, let's not forget another special interest group, such as organized labor. This special interest group will not have to pay the so-called 'cadillac tax' on high-end health insurance policies until 2018, while other 'ordinary' citizens are forced to pay that tax for several years prior to 2018. By the way, do you think there might be the possibility of that particular provision of the bill being extended by law just before the year 2018, if the Democrats still hold power???? Another safe guess here would be ABSOLUTELY!

This corrupt bill should cause taxpayers to scream out for a Constitutional Amendment for term limits. Until term limits for members of Congress are part of OUR Constitution, the jackboots of big government will continue to press down with steadily increasing weight on the necks of all of us who are not part of the ruling class that occupies the halls of power. Those occupiers have turned the capitol of our great country into a modern-day version of the proverbial Sodom and Gomorrah.

This bill is just another example of how those in power will use the need for something good, such as a SENSIBLE healthcare bill, and then turn it into a corrupt piece of legislation to insure that they keep their position of power.

How else do you explain the absolute refusal to address the incredible need for tort reform to reduce the cost of healthcare services? Lack of such tort reform will continue the practice of unnecessary lab tests and procedures, which adds 135 BILLION DOLLARS in costs EVERY YEAR! Medical care professionals are forced to practice this defensive medicine due to the fear of frivolous malpractice lawsuits which line the pockets of trial lawyers. This defensive medicine increases the cost of healthcare by more that a TRILLION DOLLARS every 8 years! But when a special interest group such as trial lawyers contribute more than 40 million dollars (as they did in 2008) into the election coffers of the party in power(Democrats), which is more than 4 times the amount they contributed to the other party(Republicans), what else can you expect?

Also, let's not forget another special interest group, such as organized labor. This special interest group will not have to pay the so-called 'cadillac tax' on high-end health insurance policies until 2018, while other 'ordinary' citizens are forced to pay that tax for several years prior to 2018. By the way, do you think there might be the possibility of that particular provision of the bill being extended by law just before the year 2018, if the Democrats still hold power???? Another safe guess here would be ABSOLUTELY!

This corrupt bill should cause taxpayers to scream out for a Constitutional Amendment for term limits. Until term limits for members of Congress are part of OUR Constitution, the jackboots of big government will continue to press down with steadily increasing weight on the necks of all of us who are not part of the ruling class that occupies the halls of power. Those occupiers have turned the capitol of our great country into a modern-day version of the proverbial Sodom and Gomorrah.

I do wish that my sister and niece (white and college educated) would be required to buy some health care. They do live in Calif. and there are Emergency Rooms not far ...so the taxpayers of California will, I hope, keep their Emergency Rooms open. Do we dislike the "Patient Protection and Affordable Care Act," mainly because we do not want "those" brown / black skin folks to get care in an Emergency Room? Does that include white folks? It is true that some Emergency Rooms have had to close for lack of funds. Interesting ideas, thank you, Mr. Lane.

Mr. Lane omitted one important fact in his otherwise excellent analysis; under current law, health insurers are expressly forbidden to sell their products across state lines. This being the case, it cannot be described as interstate commerce and is therefore not covered by the Commerce Clause. In other words, it is in fact expressly forbidden by the Constitution.

I do wish that my sister and niece (white and college educated) would be required to buy some health care. They do live in Calif. and there are Emergency Rooms not far ...so the taxpayers of California will, I hope, keep their Emergency Rooms open. Do we dislike the "Patient Protection and Affordable Care Act," mainly because we do not want "those" brown / black skin folks to get care in an Emergency Room? Does that include white folks? It is true that some Emergency Rooms have had to close for lack of funds. Interesting ideas, thank you, Mr. Lane.

You are quite right, mandatory is a violation of basic American rights, for that matter, imposing the requirement of hospitals and physicians to care for those who are ill or injured and cannot pay is socialism.

Social security and medicare were precursors to this form of socialism and should be eliminated now.

Apparently Mr. Lane did not read the 78 pages of Judge Vinson's ruling, or he somehow thinks he knows more about the law then Vinson does.... The Supreme Court will no doubt agree with Vinson's well thought out and explained determination.

Posted by: cathyjs
---------------------------------
So far, four federal judges have ruled on this issue. Two of them found no problem with the law (also citing precedence), two did find problems. Why do you assume that SCOTUS will agree with only the two who found a problem? Obviously its not as clear cut as you seem to assume.

As Charles Lane points out, from very early in the republic the Supreme Court endorsed a more liberal constructionist view of the Constitution, and it rejected a strict constructionist one.

Indeed, the Founders were in agreement that popular sovereignty and freedom (of political participation and individual thought and expression) and equality (of opportunity and justice) and the pubic good were the purposes and core values of government.

Conservatives either don't know or have forgotten or don't believe that.

What Lane failed to note is that the Supreme Court, in Gibbons v. Ogden, took a liberal constructionist view of the Constitution in ruling that trade was more than just the exchange of products, but extended to services (steam boat passenger service in that case). And the Court ruled that only Congress could regulate that trade between the states.

If conservatives were honest with history and with themselves and with the public (and they are not), then the constitutionality of the health care legislation would not be an issue.

But as we know, they say one thing, and do another, and just make it up as they go.

For the GOP and Tea Party to complain about the fact that the ability to pas individual mandates or the fact that health care are not mentioned SPECIFICALLY in the constitution shows both their shortsightedness and their lack of the respect they claim to have for the founding fathers. The fact that the constitution is often (intentionally) vague is what has allowed it to survive for so long. Health insurance did not exist when the constitution was written, nor did a myriad of other issues brought before the supreme court to rule on. If we relied only on a strict interpretation of the constitution, based only on exactly what was mentioned in the constitution and allowing for no interpretation as conservatives would like, we would have had to rewrite the constitution every time a legal issue was not directly and specifically dealt with. The fact that the constitution is somewhat vague on details and only sets out guiding principles for dealing with legal issues is a testament to the genius of our founding father and their ability to both write a governing document and set up a government that has lasted through the centuries.

Further, Lane's arguments are only half correct. While part of the legal authority for the individual mandate on health care does derive from the necessary and proper clause, the larger part is derived from the interstate commerce clause. So, while the "sky is falling" argument that if this passes then congress will be able to pass any law (someone mentioned abolishing private property) that is necessary for the "general welfare", such arguments only serve to stir the useful idiots into a fervor. In reality, for right or wrong, there is significant legal precedent that has held that individual requirements to do or restrictions from doing certain things are constitutional when those regulated activities significantly impact the market. It is upon those precedents that the bulk of the constitutionality of the mandate is based. The necessary and proper and general welfare clauses just add more strength to the foundation.

My questions to the conservatives is this: What do we do about those who refuse to choose to purchase insurance. As it is, cost is not an issue, since everyone that cannot afford to buy private insurance will be eligible for various government plans. It seems to me that the only ones this mandate will effect are those who can afford insurance, but do not want to pay for it, instead opting to take a free ride.

Personally I am all for an opt out clause. You can opt to refuse to purchase insurance so as to keep "big brother" out of your private and economic life. At the same time, government and hospitals can opt to refuse to provide you with any health care you cannot pay for up front so as to keep your decisions from economically effecting the millions of others whose taxes would otherwise be giving you a free ride.

This bill is just another example of how those in power will use the need for something good, such as a SENSIBLE healthcare bill, and then turn it into a corrupt piece of legislation to insure that they keep their position of power.

How else do you explain the absolute refusal to address the incredible need for tort reform to reduce the cost of healthcare services? Lack of such tort reform will continue the practice of unnecessary lab tests and procedures, which adds 135 BILLION DOLLARS in costs EVERY YEAR! Medical care professionals are forced to practice this defensive medicine due to the fear of frivolous malpractice lawsuits which line the pockets of trial lawyers. This defensive medicine increases the cost of healthcare by more that a TRILLION DOLLARS every 8 years! But when a special interest group such as trial lawyers contribute more than 40 million dollars (as they did in 2008) into the election coffers of the party in power(Democrats), which is more than 4 times the amount they contributed to the other party(Republicans), what else can you expect?

Also, let's not forget another special interest group, such as organized labor. This special interest group will not have to pay the so-called 'cadillac tax' on high-end health insurance policies until 2018, while other 'ordinary' citizens are forced to pay that tax for several years prior to 2018. By the way, do you think there might be the possibility of that particular provision of the bill being extended by law just before the year 2018, if the Democrats still hold power???? Another safe guess here would be ABSOLUTELY!

This corrupt bill should cause taxpayers to scream out for a Constitutional Amendment for term limits. Until term limits for members of Congress are part of OUR Constitution, the jackboots of big government will continue to press down with steadily increasing weight on the necks of all of us who are not part of the ruling class that occupies the halls of power. Those occupiers have turned the capitol of our great country into a modern-day version of the proverbial Sodom and Gomorrah.

Notice that our repeat poster jawga never gives any reference for his "facts" most of which are false. Here are the facts on "tort reform":

Just to restrict to the CBO, on page 150 ff of http://www.cbo.gov/ftpdocs/99xx/doc9924/12-18-KeyIssues.pdf, and http://www.cbo.gov/ftpdocs/71xx/doc7174/04-28-MedicalMalpractice.pdf, the CBO found no significant saving in those states such as Texas that have instituted "tort reform. In addition there was no reduction in the frequency of tests and treatments. Their costs and frequencies were also similar to those in states with tort reform. In a recent letter to Senator Hatch, the CBO said that an ideal system of torts would not save more than 0.5%, 60% (0.3%) of which would be in reduction of overutilization, i.e. "defensive medicine." They admit that this figure may be too high as examples have shown that in some cases, "tort reform" has increased some aspects of overutilization, and they ignored that in their computation. This amounts to about $32 a year on the average policy. In fact, here is the pertinent paragraph from that letter:

"CBO now estimates, on the basis of an analysis incorporating the results of recent
research, that if a package of proposals such as those described above was enacted, it
would reduce total national health care spending by about 0.5 percent (about $11 billion
in 2009). That figure is the sum of the direct reduction in spending of 0.2 percent from
lower medical liability premiums, as discussed earlier, and an additional indirect
reduction of 0.3 percent from slightly less utilization of health care services. (That
reduction is the estimated net effect of the entire package listed earlier, although some
components of that package might increase the utilization of physicians’ services, as has
already been noted.) CBO’s estimate takes into account the fact that because many states
have already implemented some of the changes in the package, a significant fraction of
the potential cost savings has already been realized."

What I maintain is that tort reform, limiting awards, restricting suits simply does not save significant sums. You see that by doing an experiment which we have already done. The 30 states with some kind of tort reform do not have lower health care costs.

I assume from her comments that ophelia3 would be in FAVOR of a public option, or better, a single-payer system.

And I also assume from his comments that jawga gets most of his "information" from Fox faux news, right-wing websites or right-wing rant radio.

At most, medical malpractice insurance amounts to no more than 2 percent of health care costs. Moreover, most of the claims that are related to malpractice come from disability or death, and most people injured by doctors do NOT bring suit.

The medical malpratice screed is another of the conservative myths (they seem not to care much for the truth). It fits right in with the myth that we are overtaxed; and with the myth that tax cuts pay or themselves; and with the myth there were weapons of mass destruction in Iraq; and with the myth that Reagan was a great president; and, of course, with the myth that there was an "original intent" to the Constitution (and that it is conservative).

Okay...they're not merely myths. Let's call them what they are....they're lies. Pure and simple.

If the Congress passed and the SCOTUS upheld a law that "commanded" "all good citizens ... to aid and assist" federal marshals and local authoprities in hunting down illegal aliens", I suspect 75% of Americans of all ethnic backgrounds would gladly comply.

But GIVE Me Liberty or GIVE ME Health Care?

Come on Charlie...giveme, giveme, giveme.

Have you and Soros and the Mediamatters ilk forgotten JFK's legacy?

How about asking not what your country can GIVE YOU and 30 million illegal aliens. Ask what you can GIVE your Country and that does not include Democratic Party corruption and national bankruptcy.

We are now "mandated" to buy into Social Security and Medicare, what's the difference?
The underlying problem with this entire issue is the "insurance" aspect.
Health care is a basic necessity for a healthy life; it isn't optional. We should be paying for health care, not health insurance; it is like buying gasoline insurance! Imagine the cost of gas if there were insurance companies taking billions of our fuel dollars.
Billions of dollars go to insurance companies, not health care providers.
The only logical way to provide health care for all at the lowest cost is with a single payer system.

lensch at 9:48. Thanks for the facts about tort reform. I hope those who think this is some sort of solution to the health care costs problems will look at how little effect it would actually have.

As importantly, it should also be noted that tort reform which limits the findings of a jury is an assault on Amendment VII of the U.S. Constitution. That Amendment, a part of the Bill of Rights - please note-, provides for a jury trial " In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..."

We do not trust politicians to place limits on prices or wages. Why would we think politicians would be intelligent about placing limits on jury awards in civil cases?

This attempt to limit what a jury of one's peers may determine as justice simply takes justice out of the hands of our peers and puts it in the hands of politicians.

No system is perfect. Any of us could find examples of times when the system has resulted in what appears to be over-compensation for an injury, just as we can find cases where the system has failed to award adequate compensation for an injury.

But, to think that politicians would do a better job than a jury is dangerous to the very concept of justice from our peers. I think this Amendment to the constitution should be defended as vigorously as the right to bear arms. Justice by a jury of one's peers is the foundation of our system of individual justice.

Don't let anyone fool you into thinking that the danger to justice is anything less.

Actually, the 1792 Militia Act was a piece of useless crap. It failed to do what it was intended, and it resulted in unwarranted seizures of property from the poor. In short, it was elitist, and ultimately, un-Constitutional.

Ditto the Fugitive Slave Law of 1850. Basically an abrogation of the right to practice your religious views, and a federal denial of human rights, even though slaves weren't considered truly human at the time. Again, in spite of the Supreme Court's rule in 1859, clearly un-Constitutional.

Constitutionality is omni-chronological. What was considered Constitutional in its day, and later changed, means that it really was un-Constitutional way back when, but we finally woke up, smelled the coffee, and stopped engaging in collective selfish denial.

The 1792 Militia Act was wrong. Congress's power to "provide for organizing, arming, and disciplining the militia" was not used; otherwise, Congress should have provided the equipment, that is, standardized rifles and ammunition at the government's expense, not the individuals'.

Article 1, Section 8, clause 12, which empowers Congress "to raise . . . armies." does NOT in fact, authorize military conscription, AKA military slavery. Raising armies is a matter of calling for volunteers, or hiring mercenaries, not enslaving your own citizens.

The Constitution was written to provide a framework within which the many states could cooperate with each other to the maximum benefit of their citizens, under a commonly understood minimal standard of behavior, with minimal interference from the government and the absolute minimum government necessary to prevent outside attack and subjugation.

Even Social Security today, with the massive benefits that come with it, really exceeds that authority. Social Security itself isn't absolutely mandatory, and people aren't fined for not participating. And Social Security would be 100% sound if the federal government wasn't using it as a slush fund for the general fund, AND tacking old age health care costs into it instead of just a pension fund.

So a mandatory, universal, health care system, with punitive measures for non-participation, must also fail to meet the category of Constitutionality. An admirable goal, wrongly arrived at. Truly, the end does NOT justify the means.

By the way, mac7, auto insurance is NOT federally mandated. Auto insurance comes under state requirements; and in the case of New Hampshire, is optional. There are a large number of NH drivers who do not carry insurance. Of course they're not supposed to drive in states that do require insurance, but then it's a matter of whether they get caught or not. And that rarely happens.

A very simple-minded analysis. What you need to look at is the constitutional authority of a law. All the laws stated find their constitutional authority in something other than the commerce clause (slavery is a different subject altogether). Congress claims that constituional authority for Obamacare arises out of the COMMERCE Clause. To date, commerce clause jurisprudence limits commerce clause jurisdiction to economic activity. What's new is that Obamacare regulates economic inactivity. this is what's at issue. The other laws are irrelevant to the argument.

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